Do photographs of restaurant dishes constitute intellectual property violations?

Do you recognize this scene?  A couple’s meal arrives at their table, but instead of diving straight into their food, they pause, not for a prayer, but for a picture.  The practice of photographing restaurant dishes is commonplace nowadays, but often upsets chefs.  Some of them cite bad etiquette, marketing, or disturbance of dining ambiance.  A repeated complaint, however, is that photographing a dish and publishing that picture on the internet constitutes a violation of the chefs intellectual property.
Three-starred chef Gilles Goujon stated in a France TV Info report that online pictures of his food take away “a little bit of (his) intellectual property.”  Other chefs agree with this notion.  RJ Cooper, for example, states:  “If you’re publishing something in a public forum without written consent, that’s problematic”.  For this reason, some of them insert a “no camera” provision to their menus.
Unfortunately for them, there is no way for chefs to protect their works in the established categories of IP protection.  According to an article published by Eric von Hippel and Emmanuele Fauchart, chefs operate on a “norms-based” IP system, which is founded on community social norms.  Norms-based IP protection between chefs means:
  • not copying exactly an innovative recipe created by a colleague
  • not passing on recipe-related secret information without permission
  • giving credit to developers of significant recipes
Those who do not hold to these norms suffer informal consequences such as withholding of information or community exclusion.  Though this system works from chef-to-chef, the industry has failed to establish such a standard between chefs and their clientele.  The trouble is that there is no legal basis for claiming intellectual property infringement.  Dishes are not protected works or articles.  They are generally not permanent, fixated, utilitarian, or original enough to get around various design or copyright qualification requirements.  Even if the dishes had IP substinence, it would be difficult to prove that taking photographs of them truly constitutes infringement as opposed to fair use.
Take a look at von Hippel and Fauchart’s article here for more information.